The Case - Moot Court 2005• October 25, 2005
The case pits the United States Department of Defense against an association of law schools and law faculty called the National Association for Scholastic, Collegiate and Academic Rights, Inc. (NASCAR). At issue is whether the First Amendment bars the enforcement of a federal law called the Solomon Amendment, or whether Constitutional provisions for Congress to provide for a military trumps the First Amendment. That law requires the Department of Defense to deny funding to institutions of higher education which prohibit military representatives access to and assistance for recruiting.
Congress and the courts have upheld the right of the military to discriminate based on a soldier’s sexual orientation. The law schools have policies against discrimination on sexual orientation. They contend that requiring the military recruiters on their campuses violates their First Amendment rights to free speech.
A little history will help. Congress enacted the Solomon Amendment in 1994, and amended it in 1997, 1999, and 2005. The law exempts schools with a longstanding religiously based policy of pacifism. Until the September 11 attacks, the Department of Defense was satisfied if the schools merely provided some accommodation. Afterwards, the Department began an informal policy of insisting that the schools not discriminate against military recruiters but provide them the same level of assistance from the schools’ career development office (arranging interviews, posting notices, etc.) provided to non-military recruiters.
In 2005, Congress codified the Department’s policy. Now under the terms of the statute itself, law schools and their parent institutions are penalized if they do not treat military recruiters "in a manner that is at least equal in quality and scope" to the access to campuses and to students "that is provided to any other employer." 10 U.S.C. 983(b). Schools could lose funding from agencies in addition to the DOD.
In 2003, before the most recent amendment, NASCAR sued the DOD and other federal departments whose funds were restricted under the Solomon Amendment for an injunction to stop the enforcement of both the law itself and the DOD’s policy of enforcement. The district court denied the injunction, but the majority of a divided Court of Appeals ordered an injunction. The majority held that the Solomon Amendment violated the law schools’ First Amendment rights of free speech because the law conditioned funding on the law schools’ propagation, accommodation, and subsidy of the military’s recruiting, which was expression. Disagreeing, the dissent relied heavily on other parts of the constitution that required Congress to provide for the common defense, to declare war, and to make all laws that are necessary and proper.
The case comes before the Supreme Court tonight. The Court will be analyzing the issue with "strict scrutiny." The judges will question the advocates on how Boy Scouts of America v. Dale, a decision handed down in 2000, applies to this case. In that case, the Court held that the scouts, being an "expressive association," could not be forced by a state law to accept an openly gay man as an assistant scoutmaster.
The first two advocates, the appellants, contend the Solomon Amendment is enforceable, that it does not violate the First Amendment rights of the law schools, and that the Supreme Court should dissolve the injunction. The second two advocates, the appellees, advocate the Court of Appeals was correct, that the law violates the First Amendment, and that the Supreme Court should sustain the injunction.